NotFound

without a jury,a method of procedure claimed to be i violation of the constitution of the United States and therefore null and void. The objection was overruled, and exception taken; and upon that exception the case has been brought by appeal to this court.' The opinion of the court of appeals will be found reported 22 Wash. Law Rep. 447. The court held that the act of congress of July 23, 1892 (
27 Stat. 261), providing that in prosecutions in the police court of the District, in which, according to the constitution, the accused would be entitled to a jury trial, the accused might in open court expressly waive such trial by jury and request to be tried by the judge, in which case the trial should be by the judge, and the judgment and sentence should have the same force and effect as if entered and pronounced upon the verdict of a jury, was constitutional and valid; and that the record of a trial, conviction, and sentence by a judge under such a waiver was competent evidence, on an indictment for a similar offense, to prove that it was the defendant's second offense of the same kind. It is contended that the sentence as for a second offense under which petitioner is held is void, because the first conviction of petitioner was void and of no effect in law, inasmuch as the constitutional requirement of trial by jury in criminal cases could not be waived by the accused person, though in pursuance of a statute that authorized such waiver. Does the ground of this application go to the jurisdiction or authority of the supreme court of the District, or, rather, is it not an allegation of mere error? If the latter, it cannot be reviewed in this proceeding. In re Schneider,
148 U. S. 162, 13 Sup. Ct. 572, and cases cited. In Ex parte Bigelow,
113 U. S. 328, 5 Sup. Ct. 542, which was a motion for leave to file a petition for habeas corpus, the petitioner had been convicted and sentenced in the supreme court of the District to imprisonment for five years under an indictment for embezzlement. It appeared that there were pending before that court 14 indictments against the petitioner for embezzlement, and an order of the court had directed that they be consolidated under the statute, and tried together. A

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jury was impaneled and sworn, and the district attorney had made his opening statement to the jury, when the court took a recess, and, upon reconvening a short time afterwards, the court decided that the indictments could not be well tried together, and directed the jury to be discharged from the further consideration of them, and rescinded the order of consolidation. The prisoner was thereupon tried before the same jury on one of the indictments, and found guilty. All of this was against his protest, and without his consent. The judgment on the verdict was taken by appeal to the supreme court of the district in general term, where it was affirmed. It was argued here, as it was in the court in general term, that the impaneling and swearing of the jury, and the statement of his case by the district attorney, put the prisoner in jeopardy in respect of all the offenses charged in the consolidated indictment, within the meaning of the fifth amendment, so that he could not be again tried for any of these offenses; and Mr. Justice Miller, delivering the opinion of the court, after remarking that, if the court of the District was without authority in the matter, this court would have power to discharge the prisoner from confinement, said: 'But that court had jurisdiction of the offense described in the indictment on which the prisoner was tried. It had jurisdiction of the prisoner, who was properly brought before the court. It had jurisdiction to hear the charge and the evidence against the prisoner. It had jurisdiction to hear and to decide upon the defenses offered by him. The matter now presented was one of those defenses. Whether it was a sufficient defense was a matter of law, on which that court must pass so far as it was purely a question of law, and on which the jury, under the instructions of the court, must pass, if we can u ppose any of the facts were such as required submission to the jury. If the question had been one of former acquittal,a much stronger case than this,the court would have had jurisdiction to decide upon the record whether there had been a former acquittal for the same offense, and, if the identity of the offense were in dispute, it might be necessary on such a plea to submit that question to the jury on the issue raised by the plea. The same principle would apply to a plea of a former conviction. Clearly, in these cases the court not only has jurisdiction to try and decide the question raised, but it is its imperative duty to do so. If the court makes a mistake on such trial it is error which may be corrected by the usual modes of correcting such errors, but that the court had jurisdiction to decide upon the matter raised by

99

the plea, both as matter of law and of fact, cannot be doubted. * * * It may be confessed that it is not always very easy to determine what matters go to the jurisdiction of a court so as to make its action when erroneous a nullity. But the general rule is that when the court has jurisdiction by law of the defense charged, and of the party who is so charged, its judgments are not nullities.' And the application was denied. In Hallinger

v.

Davis,
146 U. S. 314, 318, 13 Sup. Ct. 105, it was said by this court: 'Upon the question of the right of one charged with crime to waive a trial by jury, and elect to be tried by the court, when there is a positive legislative enactment giving the right so to do, and conferring power on the court to try the accused in such a case, there are numerous decisions by state courts upholding the validity of such proceeding, Dailey v. State, 4 Ohio St. 57; Dillingham v. State, 5 Ohio St. 280; People v. Noll, 20 Cal. 164; State v. Worden, 46 Conn. 349; State v. Albee, 61 N. H. 423, 428.' And see Edwards v. State, 45 N. J. Law, 419, 423; Ward v. People, 30 Mich. 116; Connelly v. State, 60 Ala. 89; Murphy v. State, 97 Ind. 579; State v. Sackett, 39 Minn. 69, 38 N. W. 773; Lavery v. Com., 101 Pa. St. 560; League v. State, 36 Md. 257, cited by the court of appeals. Without in the least suggesting a doubt as to the efficacy, value, and importance of the system of trial by jury in criminal as well as in civil actions, we are clearly of opinion that the supreme court of the District had jurisdiction and authority to determine the validity of the act which authorized the waiver of a jury, and to dispose of the question as to whether the record of a conviction before a judge without a jury, where the prisoner waived trial by jury according to statute, was legitimate proof of a first offense, and, this being so, we

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cannot review the action of that court and the court of appeals in this particular on habeas corpus. The general rule is that the writ of habeas corpus will not issue unless the court under whose warrant the petitioner is held is without jurisdiction, and that it cannot be used to correct errors. Ordinarily, the writ will not lie where there is a remedy by writ of error or appeal, but in rare and exceptional cases it may be issued although such remedy exists. We have heretofore decided that this court has no appellate jurisdiction over the judgments of the supreme court of the District of Columbia in criminal cases or on habeas corpus; but whether or not the judgments of the supreme court of the District, reviewable in the court of appeals, may be reviewed ultimately in this court in such cases, when the validity of a statute of, or an authority exercised under, the United States is drawn in question, we have as yet not been obliged to determine. In re Chapman,
156 U. S. 211, 15 Sup. Ct. 331. And that inquiry is immaterial here, as we have no doubt that the courts below had jurisdiction. Leave denied. Brown v. U S 16SCt29,159US100,40LEd90 16 S.Ct. 29 159 U.S. 100 40 L.Ed. 90 BROWN v. UNITED STATES.

This was an indictment, in which the defendant, a white man and not an Indian, was charged in one court with the crime of having killed and murdered, on the 8th day of December, 1891, at the Cherokee Nation, in the Indian country, and within the Western district of Arkansas, one Josiah Poorboy; in another count, with having killed and murdered on the same day, and in the same nation, county, and district, one Thomas Whitehead.

The accused was convicted of the crimes charged, and sentenced to be hanged. Upon writ of error to this court the judgment was reversed, and the cause was remanded, U. S.,
150 U. S. 93, 14 Sup. Ct. 37. grounds of that reversal are set forth in the opinion of Mr. Justice Jackson in Brown v. U.S.
150 U. S. 93, 14 Sup. Ct. 37.

At a second trial, Brown was again found trial having been made and overruled, the trial having been made an doverruled, the accused was sentenced, on the second count, to suffer the punishment of death by hanging, but the sentence on the first count was postponed 'to await the result of the judgment against him for killing Whitehead.'

This writ of error brings up for review the judgment last rendered.

It appeared in evidence on the last trial, as on the first one, that Poorboy and Whitehead were in search of James Craig and Waco Hampton for the purpose of arresting them. Previous to that time, Craig had been arrested by a deputy marshal, Charles Lamb, upon a charge of adultery, and had escaped from the custody of that officer. Lamb testified that he had verbally authorized Poorboy to arrest Craig. It seems, also, that Hampton was under indictment, and there was a warrant for his arrest in the hands of Deputy Marshal Bonner.

The shooting occurred in a public road along which Hampton, Roach, and Brown were riding (the latter riding behind Roach, on the same horse), about 9 or 10 o'clock at night, when an effort was made by Poorboy and Whitehead to arrest Hampton and Brown. There was evidence tending to show that Brown (who at the time of the killing was 19 years of age) was supposed by Poorboy and Whitehead, in the darkness of the evening, to be Craig. There is considerable conflict in the evidence as to what occurred at the time the shooting took place, but it is reasonably certain that Brown shot and killed either Whitehead or Poorboy after he and Roach were compelled to dismount from their horse.

After the court had completed its charge to the jury, the accused made two requests for instructions, which were given with certain modifications, but the giving of them was accompanied with the admonition that the principles of law then announced were to be taken in connection with what had been previously said by the court.

The first of the instructions asked by the accused was as follows: 'The evidence in this case shows that the deceased, Poorboy and Whitehead, were not officers, but were acting as private citizens,private individuals,without any warrant for Brown, and having no charge against Brown. Therefore, if unintentionally, or by mistake, believing him to be somebody else, they undertook to arrest the defendant, and the defendant resisted such arrest, and, in such resistance, killed the deceased, or killed the parties attempting such arrest, such killing would not be murder, but would be man-slaughter.' The court gave this instruction with this modification: 'Unless such killing was done in such a way as to show brutality, barbarity, and a wicked and malignant purpose. If it was done in that way, then it would still be murder.'

There was some evidence before the jury which, if credited, would have justified a verdict against the defendant for manslaughter only. Upon that evidence, doubtless, was based the above instruction asked by the defendant. If, in resisting arrest, be showed such brutality and barbarity as indicated, in connection with other circumstances, that he did not shoot simply to avoid being wrongfully arrested, but in execution of a wicked or malignant purpose to take life unnecessarily, or pursuant to some previous understanding with Hampton that he would assist in the killing of Whitehead and Poorboy, or either of them, the court should have so modified the defendant's instruction as to express that idea. But the jury might well have inferred, from the instruction, as modified, that they were at liberty to return a verdict of murder because alone of the way or mode in which the killing was done, even if they believed that, apart from the way in which the life of the deceased was taken, the facts made a case of manslaughter, not of murder. We do not think that a verdict of guilty of manslaughter or murder should have turned alone upon an inquiry as to the way in which the killing was done. The inquiry, rather, should have been whether, at the moment the defendant shot, there were present such circumstances, taking all of them into consideration, including the mode of killing, as made the taking of the life of the deceased manslaughter, and not murder.

Because of the error above indicated, and without considering other questions presented by the assignments of error, the judgment is reversed and the cause remanded, with directions to set aside the judgment, as well as the verdict, upon each count of the indictment, and grant a new trial.